Decision No. 8 of 5 December 2023 in constitutional case No. 21/2022
Referring entity and subject matter of the case
The constitutional case has been initiated upon a request of a panel of the Supreme Administrative Court (SAC) seeking to establish anti-constitutionality of Article 47, item 5b) of the Private Security Sector Act (PSSA). Pursuant to the challenged provision, the body referred to in Article 40 PSSA (the director of DG National Police of the Ministry of Interior (MoI) or an official authorized by him) shall refuse to issue a license for private security activity with a reasoned order in case the applicant – a natural person registered as a sole trader, single-member private limited-liability company, member of a limited liability company, member of the management body of a trading company or a legal person as well as a general partner in collective or limited partnership – has been charged with an intentional publicly prosecuted crime. Pursuant to Article 49, para 1, item 2 PSSA, the body referred to in Article 40 shall withdraw a license for private security activity with a reasoned order in the cases referred to in Article 47, item 5 in the event the natural person does not terminate his partnership in the trading company or legal person within 30 days as of occurrence of the circumstances. The Constitutional Court has admitted a precision in the subject of the request accepting that it seeks establishing the anti-constitutionality of Article 49, para 1, item 2 PSSA in the part concerning ‘in the cases referred to in Article 47, item 5’ as regards letter b). According to the SAC panel, the challenged legal regulation violates the right to property of the equity holder in the private security company charged with intentional publicly prosecuted crime which has not been determined beyond reasonable doubt by forcing him to terminate his partnership in order to prevent that the private security activity license be withdrawn. The SAC panel further maintains that this regulation violates ‘in an unjustified way the right to property of the other equity holders who bear no connection or relevance with the presumed crime’ and puts forward arguments alleging a violation of Article 19 of the Constitution.
Summary of the reasons
As regards the right to free economic initiative under Article 19, para 1 of the Constitution, it is the opinion of the Court that the case at hand bears no relevance to it. It should be borne in mind from the outset that the right to free economic initiative is not absolute in nature and does not rule out state regulation or state control over economic activities, hence the Basic Law grants the legislator the discretion to regulate, respectively to limit the right to free economic initiative with a view to protect other constitutional values. Introducing restrictions for a specific commercial activity on grounds of balancing constitutional values may not in itself serve as a basis to justify a violation of the Basic Law.
In the opinion of the Court the challenged legal regulation bears no relevance to the constitutionally enshrined right to work (Article 48, para 1 of the Constitution) of the employees of the commercial enterprise who are not addressees of the provision of Article 49, para 1, item 2 PSSA, which has direct effect only on the legal status of the trader who has been issued a private security activity license. The possibility to terminate the employment relationships with some or all of the employees on this ground is purely hypothetical and is conditioned on the manner in which the trader has opted to organize his activities after being deprived of the right to perform private security activity.
As regards the assumptions that the challenged law violates in an unjustified manner the right to property concerning the trading company’s capital, it should be pointed out that the withdrawal of the license does not affect in any way either the existence of the company as a legal entity – a status it acquires by being registered in the Commercial Register (Article 67 of the Commerce Act) – or the partners’ rights concerning the company capital.
The Court finds that the challenged legal regulation touches upon the presumption of innocence under Article 31, para 3 of the Basic Law insofar as it forces a charged natural person to take action outside the criminal proceedings and respectively bear the consequences affecting his legal status. Failing that the trader who is generally a third person bearing no relevance to the alleged offence is faced with an unfavourable outcome that restricts his business on the basis of unproved by a final sentence indictment for an offence committed by someone else.
The possibility to restrict one fundamental right in favour of another constitutional value puts forward the question of the constitutional limits of interference as regards matters protected by the Constitution. In order to determine the boundaries of eligible interference by the state in fundamental rights, the Constitutional Court applies in its case-law the proportionality principle as an element of the rule of law principle enshrined in Article 4, para 1 of the Constitution. Pursuant to this principle, limitations to a right protected by the Constitution must be proportionate to pursued legitimate objective and should not go beyond what is necessary to attain it. The Constitutional Court has consistently held that every limitation of a fundamental right must be necessary for the protection of a particular category of public interests, most appropriate and least intrusive for attaining a constitutionally justified objective.
The Court brings attention to the fact that private security activities, although performed by traders and therefore a commercial activity from the point of view of their legal form, in essence bear resemblance to the protection of public order, which pursuant to Article 105, para 2 of the Constitution is a public function of the state.
Whether security activities for maintaining the public order may authoritatively be performed by private persons tarnished by doubts of alleged criminal activity is a question with a clear answer. At the same time both the natural persons charged with criminal offence who are involved in the trading company and the trader who has been issued a private security license avail of the possibility to dispel these doubts by taking legal action as envisaged in the law to remove the persons casting doubt over the integrity of those performing the respective activity, but only after being duly notified of the respective circumstances. The lack of proactivity in this regard condemns the license holders to the consequences laid down in the law, namely being deprived of the possibility provided by the state to perform private security activities – something which is in full alignment with the need to maintain public order through the exercise of power by persons with unimpaired integrity.
Bearing in mind that the withdrawal of the license for private security activities is a consequence envisaged in the law in the event of failure (on the part of a charged natural person or a trader) to take legal action within the prescribed time limits as set forth in the law, its occurrence is conditioned on the free will of the trader and the right of choice he has exercised as regards alternatives whose consequences are laid down in the law and known in advance.
As regards the limitation of the fundamental constitutional right under Article 31, para 3 of the Basic Law resulting from the challenged legal regulation, the Court finds there is a legitimate objective such as the protection of public order by persons enjoying the authority to exercise restraint and demand particular conduct in favour of the community.
At the same time the principle of proportionality has been respected – the said legitimate objective cannot be attained by a less intrusive means provided that the withdrawal of the license for private security activities is the result of the failure (both on the part of the charged natural person and the trader) to preclude this consequence by taking different legal actions in the time limits prescribed by law.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 2 of the Constitution (power to rule on constitutionality of laws), the Constitutional Court rejects the request of a three-member panel of the Supreme Administrative Court seeking to establish anti-constitutionality of Article 49, para 1, item 2 of the Private Security Sector Act in the part concerning ‘in the cases referred to in Article 47, item 5’ as regards letter b).
Two judges expressed dissenting opinions.
Председател: Павлина Панова